Legal Holds and Trigger Events

ACC's Litigation Master's Series Helps GC's Tackle Litigation Holds

The Association of Corporate Counsel held round two of its Litigation Master's Series on October 9, 2009.  If you missed the presentation or are not a member of the ACC, the presentation slides remain available to view at the ACC's website.

The first part of the program covers internal investigations and the second part covers litigation holds.  The presentation hits the basics and the slides contain some practical tips for General Counsel charged with implementing litigation holds for their organizations.

Here is an excerpt from the program description:

Also, while new technologies assist greatly in sending out a litigation hold, in-house counsel remains responsible for making the call to issue and direct the hold. This panel will provide practical guidance for establishing effective litigation hold procedures.

To see the ACC's post for this program click here.  To download a copy of the Presentation Slides click here.  (Litigation Hold slides start on page 15).

Book Review: 7 Steps for Legal Holds

 

We have had great feedback from readers following the release of Seven Steps for Legal Holds of ESI and Other Documents (ARMA, June 2009).  Now comes a favorable review of the book, posted at Law.com (in both its Technology and Corporate Counsel sections) further demonstrating that all the hard work was worth it.  Law.com certainly got the message as demonstrated by the closing lines of the review:

Isaza and Jablonski don't have the last word on legal holds, but they certainly have the right ones, in seven, digestible steps, to get your organization started in fashioning a legal hold policy and procedure to respond to an event that triggers the duty to preserve evidence. In the end, you will want to get out there and put a legal hold on something.

To read Law.com's review click, here.  To read more about the book, click here.

Applying a Legal Hold to Digital Voicemail

From time to time we reference the hypothetical checklist that proactive organization's keep as a reference when developing the scope of a legal hold.  The checklist, in theory, identifies all areas within an organization where electronically stored information ("ESI") exists to help implement a legal hold.  As the scope of a legal hold is developed, the checklist is used to idenify relevant ESI that should be preserved.

As organizations turn to more and more electronic solutions for staying in touch it is important to make sure voicemail is on this list.  If you think about your home answering machine, the use of a micro-cassettes to store messages went out of fashion long ago.  The same holds true for just about every organization.  Often voicemail is kept on a separate server in a closet right next to the phone system.  How voicemail is stored on the voicemail system is a matter of choice and voicemail box data size.  Many mailboxes for individual users are set to hold a set length of time for messages.  Typically, when the mailbox is full the user needs to delete older messages to free up space in the mailbox to allow callers to be able to leave a message. 

Alltop Internet Aggregator Adds Legal Hold Page

Alltop, the newest tool on the internet for following news about topics of interest has added a legal hold page available here.  Alltop is now in its third version and has over 700 topics.  It is a great tool for following some of the best known news and blogs on the internet.  If you are responsible for legal holds for your organization be sure to add our site and Alltop to your favorites.  We have added the Alltop link to our links on the right. 

Negligent Litigation Hold Does Not Result In Sanctions

In Scalera v. Electrograph Systems, Inc. et al, (EDNY Sept. 29, 2009) the Magistrate Judge denied plaintiff’s motion for an adverse inference instruction.  This is in contrast to Shukla v. Sharma (EDNY Aug. 21, 2009) (holding failure to implement a litigation hold constituted gross negligence leading to sanctions).

In Scalera, the court held that the haphazard litigation hold implemented by defendants’ counsel constituted negligence.   A formal written litigation hold was not issued.  Although, defendants' counsel did verbally tell some potential key players to preserve documents, counsel did not sufficiently communicate the need to preserve with defendants’ IT department.  Despite some other recent holdings in the EDNY, the court did not believe that the failure to implement a written legal hold was grossly negligent or “bad faith”.  In short, in the absence of gross negligence plaintiff needed to establish the necessary “relevancy” of the unpreserved ESI to obtain spoliation sanctions, including proving that the unpreserved ESI would have been favorable to plaintiff’s case.  Plaintiff provided no evidence in support of its motion on this issue, so plaintiff’s motion for sanctions was denied.